Summary
This Fifth Circuit en banc opinion addresses whether an appellate court has jurisdiction to review a district court's remand order based on a defendant's alleged waiver of removal rights through participation in state-court proceedings. Overruling its prior decision in In re Weaver, the court holds that waiver is neither a jurisdictional defect nor a procedural defect under 28 U.S.C. § 1447(c), meaning such remand orders are not barred from appellate review by § 1447(d). The underlying dispute involves a former attorney removing a state-court tort action filed by his former law firm to federal court.
Topics
Practice areas
Questions Presented
- Whether appellate jurisdiction exists to review a remand order based solely on a defendant’s alleged waiver of the right to remove.
- Whether waiver of removal is a jurisdictional defect within the scope of 28 U.S.C. §1447(d).
Holdings
- The Fifth Circuit en banc holds that such a remand is not jurisdictional and therefore is reviewable; the court has jurisdiction to hear the appeal.
- Waiver of removal is not a jurisdictional defect and does not fall within §1447(d)’s bar; the Weaver precedent to the contrary is overruled.
Key quotations
“Waiver comes from neither. It is a doctrine of common‑law origin, triggered “when a party voluntarily or intentionally surrenders a known right.”” (at 817)
“We reject Weaver’s flawed holding: A remand based on waiver is not jurisdictional.” (at 817)
Factual background
A Texas law firm sued former associate Edward Festeryga in state court for taking clients and files. Festeryga removed the case to federal court within the 30‑day window. The district court remanded, holding that Festeryga had waived his removal right by filing a state‑court motion to dismiss and participating in discovery. The firm appealed the remand order.
Procedural history
The district court remanded the case, finding waiver of removal; the panel dismissed the appeal for lack of appellate jurisdiction; the en banc court granted rehearing, overruled Weaver, and held it had jurisdiction to review the remand.
Remand instructions
Return the case to the original panel for further resolution of the remaining issues, including diversity and waiver analysis.